Opinion

United States v. Jasy Von Brown, AKA Jasy Drags Wolf

417 F.3d 1077
2005 U.S. App. LEXIS 16434
2005 WL 1863280

Court: Court of Appeals for the Ninth Circuit
Filed: Aug 8, 2005
Status: Published
On the bench: Schroeder, Graber, Fisher
Cited by: 80 cases
Authority: More cited than 95.6%

explaining after Shepard that the categorization of a prior conviction as a “violent felony” or a “crime of violence” is a legal question, not a factual question coming within the purview of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)

How later courts described this case

explaining after Shepard that the categorization of a prior conviction as a “violent felony” or a “crime of violence” is a legal question, not a factual question coming within the purview of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)
stating that the district court made no impermissible finding of fact because whether a prior felony is a crime of violence “is a legal question, not a factual question coming within the purview of Apprendi, Blakely, and Booker”
holding that the categorization of a prior conviction as a “violent felony” or a “crime of violence” is a legal ques- tion outside the purview of Booker and need not be presented to a jury
rejecting the argument that the fact of prior convictions had to proved beyond a reasonable doubt because United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), did not change the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which “carves out an exception for proving the fact of a prior conviction”

Written by the judges who cited it.

The opinion

PER CURIAM:

Defendant Jasy Von Brown pleaded guilty to one count of burglary, in violation of 18 U.S.C. § 1153 (a) and Montana Code Annotated § 45-6-204. He appeals his sentence as a career offender under the United States Sentencing Guidelines (U.S.S.G.) § 4B1.1. In keeping with our decisions in

United States v. Quintana-Quintana,

383 F.3d 1052, 1053 (9th Cir.2004), ce

rt. denied,

— U.S. -, 125 S.Ct. 1100 , 160 L.Ed.2d 1085 (2005), and

United States v. Smith,

390 F.3d 661, 666-67 (9th Cir.2004), we hold that enhancing Defendant’s sentence on account of his prior convictions did not violate the Sixth Amendment, as interpreted by the Supreme Court in

Blakely v. Washington,

542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), and

United States v. Booker,

— U.S. -, -, 125 S.Ct. 738, 755-56 , 160 L.Ed.2d 621 (2005).

PROCEDURAL HISTORY

The base offense level for Defendant’s crime of conviction was 17. U.S.S.G. § 2B2.1(a)(l). But, because the conviction qualified as a “crime of violence”

and Defendant had at least two prior felony convictions for crimes of violence,

he was sentenced as a career offender under U.S.S.G. § 4B1.1, and his offense level was increased to 29. After a three-point reduction for acceptance of responsibility, his total offense level was 26. Defendant’s criminal history category was VI because of his five prior felony convictions and his sentencing as a career offender. U.S.S.G. § 4Bl.l(a). With an offense level of 29 and a criminal history category of VI, the resultant sentencing range was 120 to 150 months; the court imposed a sentence of 148 months.

DISCUSSION

On appeal, Defendant raises two related issues pertaining to the career-offender enhancement.

First, he argues that the fact of his prior convictions had to be proved to a jury beyond a reasonable doubt. That argument is foreclosed by

Quintana-Quintana,

383 F.3d at 1053 , which held that

Blakely,

542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 , does not upset the rule that

Apprendi v. New Jersey,

530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d

*1079

435 (2000), carves out an exception for proving the fact of a prior conviction.

Booker,

125 S.Ct. at 755-56 , which applied

Blakely

to the federal Sentencing Guidelines, does not change the Sixth Amendment analysis.

See Booker,

125 S.Ct. at 756 (“Any fact

(other than a prior conviction)

which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to the jury beyond a reasonable doubt.”) (emphasis added);